Judge upholds landmark ban on billboard cigarette ads

A federal judge has upheld Baltimore's landmark ban on billboards advertising cigarettes, rejecting claims by an outdoor sign company that the law limits free speech.

The ruling, released to city officials yesterday, marks the second time in recent months that Penn Advertising of Baltimore Inc. lost a court challenge of new billboard regulations believed to be the toughest in the nation.

"I feel like it's a victory for everyone -- for the children and for all the communities," said Tina Thompson, a neighborhood leader in Sandtown-Winchester who fought for outlawing tobacco and liquor billboards almost everywhere in the city.

Earlier this year, Baltimore became the first city in the nation to pass sweeping legislation regulating the advertising content of billboards, said City Solicitor Neal M. Janey. A coalition of community groups had pushed for the ban for two years, arguing that the ads target the young in poor and predominantly black neighborhoods.

Penn Advertising, which owns 90 percent of the billboards in Baltimore, sued to overturn the ordinances that prohibit alcohol and cigarette ads on outdoor signs except in stadiums and heavy industrial zones. The company argues that the ban restricts free speech, discriminates against outdoor advertisers, and, in the case of cigarette ads, is pre-empted by federal law.

Because of the legal challenges, Penn has not been forced to remove the ads.

In the ruling Thursday, Senior U.S. District Judge Herbert Murray upheld the ban on tobacco billboards. In dismissing Penn's lawsuit, he cited arguments by his colleague, Senior Judge John R. Hargrove, who in March rejected a challenge of the alcohol ban by the billboard company and Anheuser-Busch Cos. Inc.

Like Judge Hargrove, Judge Murray cited numerous legal precedents and said it was a "well-settled" principle that commercial speech has limited protections.

He also noted the conclusion of Judge Hargrove: "It is beyond our ability to understand why huge sums of money would be devoted to the promotion of sales of liquor without expected results, or continue without realized results. . . . Money talks: It talks to the young and the old about what counts in the marketplace of our society."

In addition, Judge Murray dismissed the argument that federal regulations on cigarette labeling and advertising take precedence over all local laws. He noted that localities can enact laws to discourage cigarette sales to minors.

"This is a tremendous victory for people who are concerned about the impact of smoking," said Mr. Janey, who also cited the state's proposed ban on smoking in the workplace. He said the ruling is "the first major public policy involving the regulation of cigarettes that has been upheld in the courts" since a 1992 U.S. Supreme Court ruling allowing lawsuits against makers of cigarette ads that deceived smokers about the health effects.

Penn Advertising already has appealed the ruling on the alcohol ban in the 4th U.S. Circuit Court of Appeals in Richmond, Va. Fred M. Lauer, the company's lawyer, could not be reached yesterday to comment on whether Penn will appeal the tobacco ruling.

Mr. Lauer has said the company wants to protect clients in the liquor and tobacco industries, which make up 43 percent of its advertising. Penn has voluntarily removed cigarette and alcohol ads near churches, schools and playgrounds.

But community activists say the city's poorer neighborhoods still have more than their share of the huge signs showing glamorous models smoking cigarettes or pouring cognac. If Penn asks for a stay of the ban while filing an appeal on the tobacco ruling, Mr. Janey said the city would "vigorously oppose it."